State of New York
Department of State
Committee on Open Government

The staff of the Committee on Open Government is authorized to
issue advisory opinions. The ensuing staff advisory opinion is
based solely upon the information presented in your correspondence.

Dear Ms. Cronin:

I have received your letter of July 29 concerning "the ongoing
difficulty" you have encountered in obtaining copies of police
incident reports from the Town of Ramapo.

Among the documents attached to your letter is a determination
of the U.S. Department of Housing and Urban Development dated July
24 in which it was found that your neighbor engaged in
discriminatory housing practices in violation of the Fair Housing
Act and in which you and members of your family were awarded
compensatory damages due to "economic loss, emotional distress,
physical pain, and the loss of an equal housing opportunity by
respondent's coercion, intimidation, threats and interference."
The respondent is the neighbor, and the determination referred to
several instances in which she contacted Town officials, including
the Police Department, to make complaints concerning your family.
None of the complaints resulted in the issuance of charges.

Having sought the incident reports prepared in response to
complaints made by your neighbor, you were informed by the Town
Supervisor that the Freedom of Information Law states that "access
to public records can be denied if disclosure would interfere with
law enforcement investigations", and that a review of the records
indicated that the information within them "can result in possible
criminal prosecution." As such, your requests have been denied.
Notwithstanding the stated basis for denial, you wrote that the
Police Department informed your daughter that there is no
investigation "in progress against any member of [y]our household."

While it is true that records can ordinarily be withheld when
disclosure would interfere with a law enforcement investigation,
based on the information that you provided, it appears that the
rationale for the denials cannot be justified and that the blanket
denials of your requests are inappropriate. In this regard, I
offer the following comments.

As a general matter, the Freedom of Information Law is based
upon a presumption of access. Stated differently, all records of
an agency are available, except to the extent that records or
portions thereof fall within one or more grounds for denial
appearing in §87(2)(a) through (i) of the Law. It is emphasized
that the introductory language of §87(2) refers to the authority
to
withhold "records or portions thereof" that fall within the
grounds
for denial that follow. The phrase quoted in the preceding
sentence in my opinion indicates that single record or report might
consist of both accessible and deniable information; it also
indicates that an agency must review records sought, in their
entirety, to determine which portions, if any, may justifiably be
withheld. If there are portions of records that fall within one or
more of the grounds for denial, those portions may be deleted, and
the remainder of the records must be disclosed.
Perhaps most important in relation to records pertinent to a
law enforcement investigation is §87(2)(e) of the Freedom of
Information Law. That provision permits an agency to withhold
records that:

"are compiled for law enforcement purposes and
which, if disclosed, would:

i. interfere with law enforcement
investigations or judicial proceedings;

ii. deprive a person of a right to a fair
trial or impartial adjudication;

iii. identify a confidential source or
disclose confidential information relating to
a criminal investigation; or

To the extent that the records are compiled for law enforcement
purposes, an agency may withhold them only to the extent that the
harmful effects described in subparagraphs (i) through (iv) of
§87(2)(e) would arise by means of disclosure. In this instance,
in
view of the detail contained in the determination by the Department
of Housing and Urban Development, it would appear that disclosure
at this juncture would have no or little impact upon any
investigation. Moreover, according to the information given to
your daughter, no investigation is pending in relation to the
subject matter of the records sought. If that is so, disclosure
could not interfere with a law enforcement investigation because
there is no investigation. With respect to §87(2)(e)(iii), if
records identify confidential sources, for example, names or other
identifying details could be deleted. However, to qualify as a
confidential source, it has been held that an individual must have
been given a promise of confidentiality. In a case involving
records maintained by the New York City Police Department relating
to a sexual assault, it was held that:

"NYPD has failed to meet its burden to
establish that the material sought is exempt
from disclosure. While NYPD has invoked a
number of exemptions with might justify its
failure to supply the requested information,
it has failed to specify with particularity
the basis for its refusal...

"As to the concern for the privacy of the
witnesses to the assault, NYPD has not alleged
that anyone was promised confidentiality in
exchange for his cooperation in the
investigation so as to qualify as a
'confidential source' within the meaning of
the statute (Public Officers Law
§87[2][e][iii]" [Cornell University v. City of
New York Police Department, 153 AD 2d 515, 517
(1989); motion for leave to appeal denied, 72
NY 2d 707 (1990); see also, Laureano v.
Grimes, 579 NYS 2d 357, 79 AD 2d 600 (1992)].

Also of potential significance is §87(2)(b), which authorizes
an agency to withhold records to the extent that disclosure would
constitute "an unwarranted invasion of personal privacy".
Where
appropriate, names or other identifying details may be deleted from
records that would otherwise be available to protect against
unwarranted invasions of personal privacy [see Freedom of
Information Law, §89(2)(a)]. If the identity of complainants is
not known, often portions of records identifying them may be
withheld under §87(2)(b). Nevertheless, in this case, the identity
of the complainant is clearly known, and the privacy provisions
would appear to be inapplicable.

Lastly, it is emphasized that the courts have consistently
interpreted the Freedom of Information Law in a manner that fosters
maximum access. As stated by the Court of Appeals some fifteen
years ago:

"To be sure, the balance is presumptively
struck in favor of disclosure, but in eight
specific, narrowly constructed instances where
the governmental agency convincingly
demonstrates its need, disclosure will not be
ordered (Public Officers Law, section 87, subd
2). Thus, the agency does not have carte
blanche to withhold any information it
pleases. Rather, it is required to articulate
particularized and specific justification and,
if necessary, submit the requested materials
to the courts for in camera inspection, to
exempt its records from disclosure (see Church
of Scientology of N.Y. v. State of New York,
46 NY 2d 906, 908). Only where the material
requested falls squarely within the ambit of
one of these statutory exemptions may
disclosure be withheld" [Fink v. Lefkowitz, 47
NY 2d 567, 571 (1979)]."

In another decision rendered by the Court of Appeals, it was held
that:

"Exemptions are to be narrowly construed to
provide maximum access, and the agency seeking
to prevent disclosure carries the burden of
demonstrating that the requested material
falls squarely within a FOIL exemption by
articulating a particularized and specific
justification for denying access" [Capital
Newspapers v. Burns, supra, 566 (1986); see
also, Farbman & Sons v. New York City, 62 NY
2d 75, 80 (1984); and Fink v. Lefkowitz,
supra].

Moreover, in the same decision, in a statement regarding the intent
and utility of the Freedom of Information Law, it was found that:

"The Freedom of Information Law expresses this
State's strong commitment to open government
and public accountability and imposes a broad
standard of disclosure upon the State and its
agencies (see, Matter of Farbman & Sons v New
York City Health and Hosps. Corp., 62 NY 2d
75, 79). The statute, enacted in furtherance
of the public's vested and inherent 'right to
know', affords all citizens the means to
obtain information concerning the day-to-day
functioning of State and local government thus
providing the electorate with sufficient
information 'to make intelligent, informed
choices with respect to both the direction and
scope of governmental activities' and with an
effective tool for exposing waste, negligence
and abuse on the part of government officers"
(id., 565-566).

In effort to enhance compliance with and understanding of the
Freedom of Information Law, copies of this opinion will be
forwarded to the Town Supervisor.
I hope that I have been of some assistance.